No. 96-035
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
AIREFCO,Inc.,
Plaintiff and Appellant,
v.
LINZEE BROCKMEYER,
Defendant, Respondent
and Cross-Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C.B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Sol, Sol &Wolfe Law Firm, Missoula, Montana
For Respondent: .
Wilmer E. Windham, Polson, Montana
Submitted on Briefs: May 9, 1996
Decided: August 15, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
Airefco, Inc. (Airefco) appeals the October 20, 1995 findings
of fact, conclusions of law and judgment of the Twentieth Judicial
District Court, Lake County and from the court's November 20, 1995
order denying Airefco's motion to alter or amend. Linzee
Brockmeyer (Brockmeyer) cross appeals from the same October 20,
1995 findings of fact, conclusions of law and judgment. We affirm.
ISSUES
Airefco raises the following issues on appeal.
1. Did the District Court err in not awarding Airefco unpaid
rent?
2. Did the District Court err in not awarding Airefco attorney
fees?
3. Did the District Court err in not awarding Airefco
statutory treble damages?
Brockmeyer raises the following issues by way of cross-appeal:
1. Did the District Court err in awarding damages to Airefco?
2. Did the District Court err in awarding liquidated damages?
3. Did the District Court err in its computation of the damages?
BACKGROUND
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BACKGROUND
On or about February 1, 1986, Airefco and Brockmeyer entered
a lease agreement for a commercial property in Lake County,
Montana. Brockmeyer entered the lease knowing that Airefco was
looking for a buyer for the commercial property. On March 23,
1995, Airefco, through its attorneys, issued a default notice to
Brockmeyer for failure to pay rent and issued a 30-day notice of
termination of the lease agreement.
On April 17, 1995, Airefco filed a complaint in district court
seeking possession of the premises, damages for unpaid rent, and
attorney fees. Brockmeyer failed to answer the complaint and the
clerk of court entered Brockmeyer's default. On May 31, 1995,
Airefco moved for a default judgment. Brockmeyer's attorney
requested the parties enter into a stipulation.
Airefco and Brockmeyer subsequently entered into a
stipulation, which the District Court approved by order on July 10,
1995. The stipulation provided in part that if Brockmeyer did not
move out of the premises by July 7, 1995, she would owe Airefco
$3,000 in liquidated damages. Brockmeyer removed her personal
property from the premises by July 14, 1995. On September 1, 1995,
Airefco moved the District Court for judgment requesting the
damages specified in the stipulation. Following a hearing, the
District Court entered findings of fact, conclusions of law and
judgment, finding that the stipulation terminated the lease and
that pursuant to the stipulation, Brockmeyer owed Airefco $3,000 in
liquidated damages for holding over July 7, 1995, treble rent for
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the 7 hold over days, and $430 for damages to the property.
Moreover, the District Court did not award either party attorney
fees.
Airefco moved to alter or amend the findings of fact,
conclusions of law and judgment. On November 20, 1995, the
District Court denied Airefco's motion. Both parties appeal the
October 20, I995 findings of fact, conclusions of law and judgment
entered by the District Court.
DISCUSSION
The basis of both parties' appeals rests on the District
Court's findings of fact, conclusions of law and judgment. We
review a district court's findings of fact to determine whether
they are clearly erroneous: Daines v. Knight (19951, 269 Mont.
320, 324, 888 P.2d 904, 906. We review a district court's
conclusions of law to determine whether the court's interpretation
of the law is correct. Carbon County v. Union Reserve Coal Co.,
Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. Thus, we have
held that "this Court indulges the presumption that the judgment of
the district court is correct and will be upheld unless clearly
shown to be erroneous, the burden of showing which rests upon the
appellant." Kamp v. First National Bank and Trust Co. (1973), 161
Mont. 103, 106, 504 P.2d 987, 989. Similarly, in Walsh v.
Ellingson Agency (1980), 188 Mont. 367, 373, 613 P.2d 1381, 1384,
we stated that the appellant has the burden of showing that the
district court erred and that this Court will not reverse the
district court absent the demonstration of such error.
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Having read the briefs and examined the record in this case,
we conclude simply, and without trying to analyze and discuss the
various confusing arguments raised in the briefs, that neither the
appellant northe cross-appellant has met its burden to demonstrate
in any clear or convincing fashion in what respect the trial court
erred. In so doing, we reiterate what should be obvious. If the
appealing party is unable to first weave the fabric of reversible
error, we will not engage in the task of stitching a silk purse.
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